In March 2015, the National Council for Peace and Order (NCPO) promulgated the ‘Gender Equality Act.’ It was a surprising move for a coup government that appointed a mere 5% of women to its 250 member National Legislative Assembly. Yet, it was a celebrated milestone – the Act was “the first of its kind in Thai legal history,” according to a study by Chulalongkorn University.
Five years on, the law has been called “Thailand’s Invisible Gender Law.” The law was intended to provide “appropriate fairness for those who are subject to unfair gender discrimination,” yet issues have marred the implementation of the bill: lack of public awareness on the bill’s existence, slow bureaucratic processes, outdated notions of what constitutes “gender discrimination” among committee members, the lack of legal protection for Thailand’s LGBTQI population at large.
With a mixed record, the Gender Equality Act deserves re-assessment: is it enough for a rapidly transforming Thai society?
More importantly, has the 2015 Act ever been enough to live up to its lofty ambition – embedded in its name – of “gender equality”?
How The Bill Is Going
Over five years since the bill has become effective, it is still struggling to find its feet. According to a 2020 UNDP study, authorities have never punished any entities using this particular law – even in the face of growing cases of gender discrimination directed at LGBTQI individuals.
According to a government official, who spoke to us on the condition of anonymity, the law is problematic because it contains ambiguous and vague wording. This is especially the case for Section 17 of the Gender Equality Act. While it prohibits discrimination based on gender, the second paragraph provides a catch-all exception in which gender discrimination is allowed if it is “for protecting the welfare and safety of a person or for following religious rules, or for the security of the nation.”
The officer cited a recent case in the department as an example. A transgender woman filed a complaint alleging to have been discriminated against by a restaurant which barred her from using female restrooms.
However, the case was dismissed. It was reasoned that transgender women are more likely to commit crimes (like theft, or possibly even rape). Thus, to protect the ‘welfare and safety of others’ who use bathrooms, the inherent discriminatory action does not violate the Gender Equality Act. This appalling decision reveals another facet of the problems associated with this law: authorities’ biases. Coupled with the bill’s ambiguity, its efficacy is obstructed.
Usa Lertsrisantad, a member of the Consideration of Unfair Gender Discrimination Committee (CUGDC), told Prachathai in 2017 that Section 17 should be changed. According to Usa, the Committee has dealt with a number of cases where the accused party cited either national security or religious principles in their defence, and this has to be resolved subjectively according to committee discussions.
The Act has upheld other surprising acts of discrimination, including the ban on the admission of LGBTQI students at Tawanchai Wittaya School, on the basis that no specific “aggrieved parties” could be identified.
There have been some victories, including universities like Chulalongkorn and Thammasat allowing students to wear graduation gowns and uniforms consistent with their gender identity, and provincial bureaucratic offices doing the same for their employees. Government departments are beginning to account for this Act when they draft their regulations. Much of this has taken place in 2020, as the social tide has turned on awareness of LGBTQI and trans issues.
Was This The Act We Needed?
Implementation aside, many questioned the circumstances under which the Act was passed, it’s vague or incorrect wording and it’s scope from the beginning.
Kanasit Puangampai is a working member of the Non-Binary Thailand group, and a gender activist who has worked with the organizations like the Move Forward party.
Kanasit alleges that there was a Gender Equality act drafted by members of civil society – NGOs and local activists – on the table, but the junta government quickly rushed their own version through the junta-controlled National Legislative Assembly. “But the draft they used to block out ours was far more limited, it was used to obstruct potentially more progressive laws.”
The Act became one of the many pieces of legislation that passed under Article 44, or martial law, that had little input from elected officials or other stakeholders. “It is an Act drafted by dictators,” Kanasit declares, “so of course, would they have listened to NGOs?”
“They wanted to gain face, to impress those on the international stage,” Kanasit continues. “But it’s like ผักชีโรยหน้า (window dressing, or literally, “parsley on top”) for the LGBTQI community.”
Senior Prachathai reporter Kornkritch Somjittranuki also highlighted the government’s lack of transparency in an interview with Reporting ASEAN. The reporter argued: “I think the military passed this law only to improve its human-rights image among the international community.”
The Act aims to protect such persons who are “male or female or expresses themselves differently from their inborn gender.” Such a definition, Kanasit argues, is exclusionary. “The Act only includes gender expression – not sex or gender identity.”
It fails to recognize Intersex individuals, whose diversity is based on their physical sex, or the critical difference between gender identity (someone’s personal experience of gender) and gender expression (someone’s outward display of gender identity).
In that sense, Kanasit sees the Act as affirming the gender binary – by placing LGBTQI- identifying individuals in an “all other” category after ‘male’ and ‘female’, and reducing deeply internalized identities to ‘expression.’
The Act also has an exceedingly limited scope, one that falls short of anything close to ‘gender equality.’ In fact, the Act is primarily focused on “gender discrimination,” something it defines as “dividing, obstructing or limiting any direct or indirect privilege without fairness” on the grounds of gender.
It is focused on negative rights – the right to be free of discrimination – rather than any positive rights such as the LGBTQI right to civil partnership or marriage, or the strengthening of women’s groups in civil society.
As UNICEF staff member Lazeena Muna-McQuay argues in a 2017 interview, “It is no easy task to apply an anti-discrimination law to support an LGBTI population that is not legally recognised.” Without important revisions, it is difficult to imagine the Act bringing Thailand substantively closer to “gender equality.”
How to Move Forward:
In some ways, Thai society has moved beyond the need for this Act. Universities, workplaces and media outlets have become increasingly progressive on their own, in response to a changing global environment that is increasingly tolerant of gender diversity.
But for the full protection of individuals across the spectrum of gender, laws are still required. Therefore, the Gender Equality Act should be reassessed. Section 17 needs to be amended to give the law more teeth. Less onus should be placed on the interpretation of government bodies, who are biased in their own way – imbued with the conservatism of Thai bureaucracy. The Act cannot only be invoked when there is a specific injured party – it must also apply to discrimination in principle, not just in practice.
The UN has written recommendations, as have various journalists across the five years it’s been in force.If gender equality really is to be the priority for this government, it must listen – and act.
By Jasmine Chia and Pongnut Thanaboonchai